Burgesser v. Bullock's

This is an action by the heirs of John Q. Burgesser, deceased, to recover damages due to his death. The trial court instructed the jury to bring in a verdict for the defendants. Plaintiffs appeal. The question presented on the appeal is whether or not there was sufficient evidence to go to the jury.

The decedent was killed by a collision between himself and an automobile belonging to the defendant Bullock's, a corporation, and operated by defendant Clopton, its employee. The accident occurred November 29, 1919, at the intersection of West Jefferson Street and Budlong Avenue, in the city of Los Angeles. About 6:15 P. M. of that day the deceased alighted from the front end of a west-bound Jefferson Street car, passed around the front end of such car and in front of the headlight of the car, and was walking across Jefferson Street in a southerly direction toward the curb on the south side of Jefferson Street, when he was struck by the defendant's automobile, proceeding easterly on Jefferson Street. The trial court granted the motion for an instructed verdict in favor of the defendants upon the ground that the decedent was negligent as a matter of law. The trial court evidently arrived at this conclusion because of the testimony of the decedent given by deposition in an action to perpetuate his testimony to the effect that he *Page 675 looked to the left and then to the right toward the defendant's automobile and saw the headlights of the approaching automobile, and continued to observe them while he walked rapidly toward the curb. The opinion of the trial court in granting the motion for the instructed verdict is incorporated in the transcript and it appears that the trial judge was of the opinion that the decedent, having observed the approaching automobile before he entered its path, and having continually observed it thereafter, and having apparently misjudged its speed, was therefore guilty of contributory negligence. The fallacy of the conclusion reached by the trial court results from the assumption that the automobile had the right of way and that it was the duty of the pedestrian to assume that the automobile would continue in its direction without diminishing its speed or yielding to the pedestrian. [1] The law is that neither the pedestrian nor the automobile has a superior right of way, and that each is entitled to use the highway and that the conduct of both must be regulated with reference to this fundamental rule. The decedent testified that when he first saw the defendant's automobile it was about twenty-five feet on the other side of Budlong Avenue and that he had just passed around the front of the street-car and had looked toward the rear of the street-car before starting to cross, and then, looking to his right, saw the headlights of defendant's machine. These lights, he testified, were "low down," apparently meaning that they were dim. He stated it was "very dusk" and he could not see the automobile itself. Whether or not the decedent was negligent in crossing the street in front of the approaching automobile was primarily a question of fact for the jury, and for that reason we do not wish to enter into a further discussion of the matter, for it is sufficient for us to say that the jury might have concluded that the decedent was not negligent in so doing.